[Cite as State ex rel. Cassens Corp. v. Indus. Comm., 2022-Ohio-2936.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Cassens Corp., : 

Relator, :

v. : No. 21AP-93

Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

 

Respondents. :

D E C I S I O N

Rendered on August 23, 2022

On brief: Morrow & Meyer, LLC, Corey Crognale, and 

Tod T. Morrow, for relator. 

On brief: Dave Yost, Attorney General, and Andrew J. 

Alatis, for respondent Industrial Commission of Ohio.

On brief: Law Office of Carla A. Lombardo, LLC, and 

Carla A. Lombardo; Schaffer and Associates, LPA, and 

Thomas J. Schaffer, for respondent Luis Ybarra. 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, P.J.

{¶ 1} Relator, Cassens Corp., initiated this original action requesting that this court 

issue a writ of mandamus ordering respondent, Industrial Commission of Ohio 

("commission"), to vacate an order finding that Cassens violated a specific safety 

requirement ("VSSR"). 

{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, 

this court referred the matter to a magistrate of this court. The magistrate issued the 

appended decision, including findings of fact and conclusions of law. The magistrate 
No. 21AP-93 2

determined that the injured employee, Luis Ybarra, established a VSSR. Thus, the 

magistrate recommends this court deny Cassens' request for a writ of mandamus.

{¶ 3} Cassens has filed objections to the magistrate's decision. Therefore, we must 

independently review the decision to ascertain whether "the magistrate has properly 

determined the factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d). 

Cassens does not challenge the magistrate's recitation of the pertinent facts; however, 

Cassens objects to the magistrate's conclusion that it is not entitled to a writ of mandamus. 

More specifically, Cassens asserts the magistrate erred in finding the commission did not 

abuse its discretion in (1) holding Cassens strictly liable for its employee's failure to clear 

snow from a windshield despite Cassens' work rule requiring employees to clear 

windshields; (2) finding that Ohio Adm.Code 4123:1-5-13 applied to over-the-highway cars 

manufactured for sale to the public; (3) finding that the temporary accumulation of snow 

constituted a visual impairment of the cab glass for purposes of Ohio Adm.Code 4123:1-5-

13(C)(4); and (4) finding that the outdoor staging area was a "factory or workshop" within 

the meaning of Ohio Adm.Code 4123:1-5-13.

{¶ 4} A brief summary of the factual circumstances is pertinent to our discussion. 

Cassens provides transport services for automobile manufacturers, transporting newly 

manufactured vehicles from the manufacturers' factories to dealers and other sellers. In 

February 2018, respondent Ybarra was working at the outdoor lot of the Chrysler Group 

Yard in Toledo, Ohio, moving newly manufactured vehicles from the outdoor lot to the 

staging area where they were to be loaded onto auto carrier trucks or trains. After parking 

a newly manufactured vehicle in the staging area, Ybarra was walking in the yard when he 

was struck from behind by a newly manufactured Dodge Durango being driven by another 

Cassens employee. The newly manufactured vehicle had snow covering its windshield, and 

the other employee did not see Ybarra or honk his horn. Cassens had a work rule requiring 

drivers to clear snow off the windshields, and Cassens subsequently terminated the other 

employee for violating the rule. Ybarra's workers' compensation claim was allowed for 

numerous conditions.

{¶ 5} Subsequently, on September 23, 2019, Ybarra filed an application for an 

additional award for VSSR, alleging Cassens had violated Ohio Adm.Code 4123:1-5-

13(C)(4) and (7). At the hearing, Ybarra withdrew his argument related to Ohio Adm.Code 
No. 21AP-93 3

4123:1-5-13(C)(7), related to audible warning devices, and proceeded solely on his claim of 

a violation of Ohio Adm.Code 4123:1-5-13(C)(4), which relates to motor vehicle cab glass. 

Following a November 2020 hearing, the staff hearing officer granted the VSSR 

application, finding the Chrysler Group Yard's outdoor yard constituted a "workshop" 

within the meaning of Ohio Adm.Code 4123:1-5-13, that the newly manufactured vehicle 

constituted a "motor vehicle" within the meaning of Ohio Adm.Code 4123:1-5-13, and that 

the accumulated snow constituted a violation of Ohio Adm.Code 4123:1-5-13(C)(4).

{¶ 6} To be entitled to a writ of mandamus, Cassens must show a clear legal right 

to the relief sought and that the commission has a clear legal duty to provide such relief. 

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ 

of mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel. Elliott 

v. Indus. Comm., 26 Ohio St.3d 76, 78-79 (1986). But when the record contains some 

evidence to support the commission's findings, there has been no abuse of discretion and 

mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 

56, 58 (1987). 

{¶ 7} The dispute here relates to the commission's granting of Ybarra's application 

for an additional award for an alleged VSSR. In applying for a VSSR award, the claimant 

bears the burden of establishing (1) a specific safety requirement exists; (2) the employer 

failed to comply with the requirement; and (3) the failure to comply was the cause of the 

injury in question. State ex rel. DeMarco v. Indus. Comm., 10th Dist. No. 19AP-227, 2021-

Ohio-1937, ¶ 6. Because a VSSR award is a penalty, it must be strictly construed, and all 

reasonable doubts concerning the interpretation of the safety standard are to be construed 

against its applicability to the employer. Id., citing State ex rel. Burton v. Indus. Comm., 

46 Ohio St.3d 170, 172 (1989); State ex rel. Precision Steel Servs.,Inc. v. Indus. Comm., 145 

Ohio St.3d 76, 2015-Ohio-4798, ¶ 21.

{¶ 8} In order for the commission to find Cassens violated Ohio Adm.Code 4123:1-

5-13, the violation must have occurred within a workshop or factory. The administrative 

code does not define the terms "workshop" and "factory." However, as this court has noted, 

"the determination of whether a place of employment is a workshop or factory under Ohio 

Adm.Code [4123]:1-5 is a finding of fact to be made in the first instance by the commission, 
No. 21AP-93 4

subject to review by the courts only for an abuse of discretion." (Former Ohio Adm.Code 

Chapter 4121 now codified at Ohio Adm.Code Chapter 4123.) State ex rel. Haire v. Indus. 

Comm., 154 Ohio App.3d 82, 2003-Ohio-4570, ¶ 21 (10th Dist.), citing State ex rel. Johnson 

v. Hilltop Basic Resources, Inc., 95 Ohio St.3d 36, 41 (2002). The issue before the court, 

therefore, is whether the commission abused its discretion in finding that the Chrysler 

outdoor yard constituted a workshop. Id. 

{¶ 9} This court has set forth three general principles to guide our review of the 

commission's interpretation of the term "workshop" as used in the administrative code. 

First, the term "workshop" does not apply generally to all places of employment. Haire at 

¶ 22, citing State ex rel. Double v. Indus. Comm., 65 Ohio St.3d 13, 16-17 (1992). Second, 

the commission may consider the common usage of the term and consult dictionaries to 

aid in its interpretation. Id., citing R.C. 1.42 and State ex rel. Wiers Farm Co. v. Indus.

Comm., 10th Dist. No. 92AP-391, 1993 Ohio App. LEXIS 2102 (Apr. 13, 1993), aff'd, 69 

Ohio St.3d 569 (1994). Third, "the commission must consider the type of work activities

being performed within the area and the machinery used, if any." Haire at ¶ 23.

{¶ 10} With these three principles in mind, we turn to the commission's 

interpretation of the term "workshop" as it applies to the Chrysler outdoor yard. The 

Supreme Court of Ohio has defined a workshop as used in the administrative code as "a 

room or place wherein power-driven machinery is employed and manual labor is exercised 

by way of trade for gain or otherwise." State ex rel. Buurma Farms, Inc. v. Indus. Comm.,

69 Ohio St.3d 111, 113 (1994). Additionally, the Supreme Court has found that an outdoor 

area can be a workshop within the meaning of Ohio Adm.Code Chapter 4123:1-5 if it is 

enclosed by perimeter fencing. State ex rel. Petrie v. Atlas Iron Processors, Inc., 85 Ohio 

St.3d 372, 373 (1999) (finding an outdoor scrapyard with a perimeter fence constituted a 

workshop, and noting "[t]he fence, in this case, indeed set forth the boundaries of work 

activity" and "served to keep unauthorized nonemployees out and, in so doing, established 

its confines as a place accessible only to employees for the purpose of carrying out the 

company's business"). 

{¶ 11} Here, the portion of the Chrysler Group Yard facility in Toledo where Cassens 

employees engaged in their work duties is an outdoor, open-air storage lot where newly 

manufactured vehicles are stored as they await transport to dealers and other sellers. 
No. 21AP-93 5

Ybarra testified at the hearing that the entire storage lot is surrounded by a fence. In finding 

the outdoor storage lot constituted a workshop within the meaning of Ohio Adm.Code 

4123:1-5-13, the commission relied on the presence of the perimeter fence and concluded 

that, pursuant to Petrie, the outdoor storage lot was, therefore, a workshop. We are mindful 

however, that the presence of a perimeter fence does not automatically compel the 

conclusion that the worksite is a workshop for purposes of Ohio Adm.Code 4123:1-5-13. As 

noted above, the commission still must consider the type of work activities performed 

within the area. Haire at ¶ 23.

{¶ 12} The evidence before the commission was clear that no manufacturing 

occurred at the outdoor storage lot. Instead, after a vehicle was assembled in the indoor 

factory, Chrysler would stage the vehicle for shipment. At that point, Cassens employees 

drive the completed vehicles into a designated zone of the outdoor yard where the vehicle 

awaits transport by either truck or railcar. The terminal manager for Cassens estimated the 

outdoor yard to be between one-half mile and one mile long, capable of storing 1,300 

vehicles, and described the facility as "basically all a parking lot." (Nov. 18, 2020 Tr. at 23.) 

Thus, despite the presence of the perimeter fence, the primary purpose of the Chrysler 

outdoor yard was merely storage of completed inventory. See Haire at ¶ 27 (finding that 

where the primary purpose of an indoor garage was the storage of vehicles, the facility was 

not a workshop within the meaning of Ohio Adm.Code Chapter 4123:1-5, and emphasizing 

that the presence of physical boundaries does not mean the commission should ignore the 

function of the structure or the type of work activities occurring in it).

{¶ 13} Further, we do not agree with the magistrate that Cassens' role in driving the 

newly manufactured vehicles to the designated zone of the outdoor yard where they would 

await transport can fairly be construed to be part of the manufacturing process such that 

the Chrysler outdoor yard can be considered a workshop. " 'An employer should not have 

to speculate as to whether it falls within the class of employers to whom a specific safety 

requirement applies.' " Johnson at 39-40, quoting Double at 17. Here, the vehicles were

manufactured and assembled by Chrysler within the confines of a separate indoor facility. 

The outdoor, fenced-in lot where Ybarra was working for Cassens was a storage lot; it was 

not "a room or place wherein power-driven machinery is employed and manual labor is 

exercised by way of trade for gain or otherwise." Buurma Farms at 113. 
No. 21AP-93 6

{¶ 14} The commission placed too much emphasis on the presence of the perimeter 

fence and did not account for the primary purpose of the outdoor yard. Thus, as there was 

not some evidence to support a finding that the purpose of the outdoor yard was conducting 

the type of work that would classify the outdoor yard as a workshop, we find the commission 

abused its discretion in concluding the Chrysler outdoor yard constituted a workshop 

within the meaning of Ohio Adm.Code Chapter 4123:1-5. Because the commission abused 

its discretion in finding the Chrysler outdoor yard to be a workshop, Cassens cannot be 

found to have committed a VSSR pursuant to Ohio Adm.Code 4123:1-5-13(C)(4). 

{¶ 15} Following our independent review of the record pursuant to Civ.R. 53, we find 

the magistrate erred in determining Cassens is not entitled to the requested writ of 

mandamus. Accordingly, we adopt the magistrate's findings of fact but not the conclusions 

of law. We therefore sustain Cassens' fourth objection to the magistrate's decision, 

rendering moot its first, second, and third objections to the magistrate's decision, and we 

grant Cassens' request for a writ of mandamus.

Objections sustained in part and moot in part;

writ of mandamus granted.

SADLER, J., concurs.

DORRIAN, J., concurs in part and dissents in part.

DORRIAN, J., concurring in part and dissenting in part.

{¶ 16} I concur in part and dissent in part with the majority. 

{¶ 17} I concur because I would grant the request for a writ of mandamus. 

{¶ 18} I respectfully dissent, however, because I would grant a limited writ only for 

the purpose of sending this action back to the commission to determine, in the first 

instance, the type of work activities performed within the Chrysler Group Yard facility and 

then whether the facility is a workshop for purposes Ohio Adm.Code 4123:1-5-13. 

{¶ 19} The majority lays out the framework for analyzing the type of work activities 

performed within the facility at paragraphs 8-11. The majority then goes on to perform the 

analysis in the first instance at paragraphs 12-14. I would not perform the analysis, but 

rather permit the commission to perform the analysis. I would further direct the 

commission to consider additional guidance we laid out in State ex rel. Haire v. Indus. 

Comm., 154 Ohio App.3d 82, 2003-Ohio-4570, ¶ 11-12 (10th Dist.):
No. 21AP-93 7

[F]or the term workshops the courts have recognized the 

definition outlined in Black's Law Dictionary (4 Ed. Rev. 1968) 

1781, as a 'room or place where power driven machinery is 

employed and manual labor is exercised by way of trade for 

gain or otherwise.' * * * 'Factory is defined in Webster's New 

World Dictionary, Second College Edition, as 'a building or 

buildings in which things are manufactured; manufacturing 

plant.'

'Utilizing these definitions it is apparent that for a facility to be 

categorized as a workshop or factory it must be an enclosed 

structure, or at a [sic] least facility surrounded by a fence, 

where manual labor is used in conjunction with powered 

machinery to [1] produce tangible products, or [2] service 

tangible products, or [3] at least alter (i.e. pack and load) an 

existing raw product * * *.'

Id. at ¶ 11-12, quoting appended magistrate's decision, quoting staff hearing officer's order.

{¶ 20} For these reasons, I concur in part and dissent in part with the majority.
No. 21AP-93 8

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Cassens Corp., : 

Relator, :

v. : No. 21AP-93

Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

 

Respondents. :

M A G I S T R A T E ' S D E C I S I O N

Rendered on March 8, 2022

Morrow & Meyer, LLC, Corey Crognale, and Susan Chae, for 

relator. 

Dave Yost, Attorney General, and Andrew J. Alatis, for 

respondent Industrial Commission of Ohio.

Law Office of Carla A. Lombardo LLC, and Carla A. 

Lombardo, for respondent Luis Ybarra. 

IN MANDAMUS 

{¶ 21} Relator, Cassens Corp. ("employer"), has filed this original action 

requesting this court issue a writ of mandamus ordering respondent Industrial 

Commission of Ohio ("commission") to vacate its order that found that the employer 

violated a specific safety requirement ("VSSR").
No. 21AP-93 9

Findings of Fact:

{¶ 22} 1. Respondent Luis Ybarra ("claimant") sustained a work-related injury on 

February 5, 2018, when he was struck by a newly manufactured car being driven by 

another employee, and his workers' compensation claim was allowed for numerous 

conditions. 

{¶ 23} 2. On the date of injury, claimant was working as a driver for the employer, 

which provides transport services for automobile manufacturers, transporting newly 

manufactured vehicles from the manufacturers' factories to dealerships and sellers. 

Claimant was working at the outdoor lot of the Chrysler Group Yard in Toledo, Ohio, 

moving cars from the lot to a staging area, where they would then be loaded onto auto 

carrier trucks or trains. The parking lot is enclosed by a fence with guarded gates for entry 

and exit and not open to the general public. The employer's activities were always 

performed outside in the yard.

{¶ 24} 3. After parking a newly manufactured car in the staging area, claimant was 

walking in the yard to get another car, when he was struck from behind by another newly 

manufactured car being driven by a coworker. The car had snow covering its window, 

and the coworker was navigating by sticking his head out of the window. The coworker 

did not see claimant or honk his horn. The employer has a work rule requiring drivers to 

clear snow off the windshields, and the employer subsequently fired claimant's coworker. 

{¶ 25} 4. On September 23, 2019, claimant filed an application for an additional 

award for VSSR, alleging that the employer had violated Ohio Adm.Code 4123:1-5-

13(C)(4), which pertains to cab glass, and (C)(7), which pertains to audible warning 

devices. Claimant withdrew the latter provision at the hearing. 

{¶ 26} 5. Ohio Adm.Code 4123:1-5-13(C)(4), entitled "Motor vehicles, mobile 

mechanized equipment, and marine operations," provides, in pertinent part: 

(C) General requirements for motor vehicles and mobile 

mechanized equipment.

* * * 

(4) All cab glass shall be safety glass or equivalent with the 

vision unimpaired by its condition.
No. 21AP-93 10

{¶ 27} 6. Pursuant to Ohio Adm.Code 4123:1-5-01(A), the specific safety 

requirement in Ohio Adm.Code 4123:1-5-13(C)(4) applies to "workshops" and "factories."

{¶ 28} 7. On November 18, 2020, the matter was heard before a staff hearing 

officer ("SHO") for the commission. In a December 24, 2020, order, the SHO granted the 

VSSR application finding the following: (1) Chrysler's yard perimeter was fenced with 

gates for entry and exit, which were guarded and not open to unauthorized people; (2) the 

employer's business operations at the Chrysler yard were always conducted outside in the 

parking lot within an approximately one-half mile area where vehicles were staged for 

transport by railcar or carrier truck; (3) the facts are sufficient to classify Chrysler yard as 

a "workshop," as that term is defined in State ex rel. Petrie v. Atlas Iron Processors, 

85 Ohio St.3d 372 (1999); therefore, Ohio Adm.Code 4123:1-5-13 is applicable; (4) the 

employer's argument that the automobile that struck claimant was not a "motor vehicle," 

as used in Ohio Adm.Code 4123:1-5-13, is unpersuasive; (5) the employer's argument that 

a motor vehicle is a vehicle that operates offsite and off the highway and Ohio Adm.Code 

4123:1-5-13 applies to things such as forklifts, haulers, tow motors, and other mechanized 

equipment, is unpersuasive; (6) the ordinary meaning of "motor vehicle" includes the 

vehicle that struck claimant; (7) the employer's argument that Ohio Adm.Code 4123:1-5-

13(C)(4) applies only to the condition of the windshield itself, i.e., cracks or defects, and 

not to snow on top of it, is unpersuasive, because glass can be impaired in ways other than 

just being cracked, shattered, broken, or otherwise defective, such as a windshield being 

wrapped with protective plastic; (8) the facts show the condition of the windshield 

impaired the vision of the employee who drove the car that struck claimant, as he was 

leaning out of the window while driving and the driver's vision would not have been 

impaired if the windshield had been cleaned off; (9) the purpose of the rule was to prevent 

the type of injury suffered; (10) therefore, the employer did not satisfy the specific safety 

requirement set forth in Ohio Adm.Code 4123:1-5-13(C)(4); and (11) the SHO need not 

address the employer's argument that it could not be penalized for an employee's 

negligence, because an employee's negligence is moot when an employer fails to comply 

with a specific safety requirement. The employer filed a request for rehearing.

{¶ 29} 8. On February 2, 2021, the SHO denied the request for rehearing.

{¶ 30} 9. On March 3, 2021, the employer filed a complaint for writ of mandamus.
No. 21AP-93 11

Conclusions of Law and Discussion:

{¶ 31} For the reasons that follow, it is this magistrate's decision that this court 

should not issue a writ of mandamus.

{¶ 32} In order for this court to issue a writ of mandamus, a relator must establish 

the following three requirements: (1) that relator has a clear legal right to the relief sought; 

(2) that respondent has a clear legal duty to provide such relief; and (3) that relator has 

no adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. 

Comm., 11 Ohio St.2d 141 (1967).

{¶ 33} To establish a VSSR, a claimant must prove that: (1) there exists an 

applicable and specific safety requirement in effect at the time of the injury; (2) the 

employer failed to comply with the requirements; and (3) the failure to comply was the 

proximate cause of the injury in question. State ex rel. Trydle v. Indus. Comm., 32 Ohio 

St.2d 257 (1972).

{¶ 34} The interpretation of a specific safety requirement is within the final 

jurisdiction of the commission. State ex rel. Berry v. Indus. Comm., 4 Ohio St.3d 193 

(1983). However, because a VSSR is a penalty, it must be strictly construed, and all 

reasonable doubts concerning the interpretation of the safety standard are to be 

construed against its applicability to the employer. State ex rel. Burton v. Indus. Comm., 

46 Ohio St.3d 170 (1989). The question of whether an injury was caused by an employer's 

failure to satisfy a specific safety requirement is a question of fact to be decided by the 

commission subject only to the abuse of discretion test. Trydle; State ex rel. A-F 

Industries, ACME-FAB Div. v. Indus, Comm., 26 Ohio St.3d 136 (1986). Furthermore, a 

safety requirement must be specific enough to plainly apprise an employer of its legal 

obligations to its employees. State ex rel. Frank Brown & Sons, Inc. v. Indus, Comm., 37 

Ohio St.3d 162 (1988).

{¶ 35} In the present matter, the employer first argues that the commission erred 

and abused its discretion when it found that the Chrysler staging area was a "factory or 

workshop" within the meaning of Ohio Adm.Code 4123:1-5-13. The employer asserts the 

Supreme Court of Ohio has consistently held that this section applies only to work inside 

a factory or workshop, citing State ex rel. Buurma Farms, Inc. v. Indus. Comm., 69 Ohio 

St.3d 111 (1994); State ex rel. Double v. Indus. Comm., 65 Ohio St.3d 13 (1992); and State 
No. 21AP-93 12

ex rel. Waugh v. Indus. Comm., 77 Ohio St.3d 453 (1997). The employer points out that, 

in the present case, the injuries to claimant occurred in an outdoor staging area. The 

employer urges that Petrie, which the SHO relied on, is distinguishable, because the 

employer's production operations in Petrie occurred within the confines of the outdoor, 

fenced-in area, while, here, the employer's activity of transporting vehicles to the staging 

area was only incidental to the manufacture of passenger vehicles, and the vehicles 

themselves were not a part of the production process. 

{¶ 36} The employer's arguments are without merit. Petrie has clearly found that 

the specific safety requirements in Ohio Adm.Code 4123:1-5 may apply to outdoor areas 

and qualify as "workshops." See State ex rel. Brammer v. Indus. Comm., 10th Dist. No. 

10AP-106, 2010-Ohio-4608, ¶ 6 (finding that "workshop," has been defined to include 

outdoor areas that are fenced in, citing Petrie). The cases relied upon by the employer—

Buurma, Double, and Waugh—were all cited in the dissenting opinion in Petrie, and the 

majority in Petrie chose to reject them. Instead, the court in Petrie agreed with the 

proposition that a "scrapyard's perimeter fencing [i]s a structural enclosure sufficient to 

classify it as a 'workshop' and render[s] [former] Ohio Adm.Code Chapter 4121:1-5 

applicable." Petrie at 373 (addressing former Ohio Adm.Code Chapter 4121:1-5, which is 

akin to current Ohio Adm.Code 4123:1-5). The court in Petrie explained that "[t]he fence, 

in this case, indeed set forth the boundaries of work activity. It also served to keep 

unauthorized nonemployees out, and, in so doing, established its confines as a place 

accessible only to employees for the purpose of carrying out the company's business." Id. 

Likewise, in the present case, the fence surrounding the staging area where the injury 

occurred set forth the boundaries of the manufacturing plant's work activities, kept 

unauthorized persons out, and set forth a non-public workspace for employees to 

continue the employer's business.

{¶ 37} The employer's attempt to distinguish Petrie from the current case because 

the employer's actual production operations in Petrie occurred within the confines of the 

outdoor, fenced-in area, while, here, the employer's activity of transporting vehicles 

within the staging area was only incidental to the manufacture of passenger vehicles, and 

the vehicles themselves were not a part of the production process, is without merit. Here, 

the movement and organization of newly manufactured vehicles within the staging area 
No. 21AP-93 13

to organize them for dispatch via railway or carrier truck, as well as the subsequent 

transporting of the vehicles from the fenced-in staging area, are essential parts of the 

manufacturing process, albeit the last stages of the process. The vehicles cannot be offered 

for sale to the public without managing the inventory of the finished vehicles and then 

moving them from the grounds of the manufacturing plant. Although occurring outside 

of the physical manufacturing plant, the movement and organization of the vehicles in the 

outside staging area are no less important tasks to the manufacturing process than the 

movement of the vehicles inside the plant. Importantly, the employer fails to cite any 

authority for the proposition that Petrie requires that the outdoor workshop be involved 

in the actual "production" of the product. The one case cited by the employer for this 

proposition, State ex rel. Thomas Haire v. Indus. Comm., 154 Ohio App.3d 82, 2003-

Ohio-4570 (10th Dist.), does not conclude the outdoor area must be part of the 

"production process." Therefore, there was some evidence in the record to support the 

commission's conclusion that the Chrysler yard was a "workshop," as that term is defined 

in Petrie, and, therefore, Ohio Adm.Code 4123:1-5-13 is applicable.

{¶ 38} The employer next argues that the commission erred and abused its 

discretion when it found that Ohio Adm.Code 4123:1-5-13 applies to over-the-highway 

passenger vehicles manufactured for sale to the public. The employer contends that this 

section applies only to vehicles used in the production process. The employer asserts that 

the vehicle that injured claimant in the present case was not a "motor vehicle" or "mobile 

mechanized equipment" as envisioned by Ohio Adm.Code 4123:1-5-13, and the type of 

vehicles meant to be subject to Ohio Adm.Code 4123:1-5-13 are those that operate within 

an off-highway jobsite that is not open to the public, consistent with federal OSHA codes 

29 C.F.R. 1910.178(a)(1) (limiting the safety requirements in that section to fire 

protection, design, maintenance and use of fork trucks, tractors, platform lift trucks, 

motorized hand trucks, and other specialized industrial trucks, and specifically excluding 

compressed air or non-flammable compressed gas-operated industrial trucks, farm 

vehicles, or vehicles intended primarily for earthmoving or over-the-road hauling) and 29 

C.F.R. 1926.601(a) (defining motor vehicles as vehicles that operate within an offhighway jobsite, not open to public traffic). The employer also claims it would be absurd 

to include all motor vehicles present within the confines of the employer's property, as 
No. 21AP-93 14

that would also cover vehicles used by company employees and visitors who park in the 

company parking lot.

{¶ 39} The employer's argument is without merit. Initially, there can be little 

argument that the vehicle that struck claimant is not a "motor vehicle," as that term is 

commonly and plainly defined. There is also no Ohio authority, either case law or within 

the code section itself, that "motor vehicle," as used in this section, does not apply to overthe-highway vehicles like passenger cars. Thus, the employer's argument starts at a 

disadvantage. Notwithstanding the plain meaning of the term "motor vehicle" and the 

lack of any supporting Ohio authority, the employer fails to present a compelling 

argument that the vehicle that struck claimant is not a "motor vehicle" envisioned by Ohio 

Adm.Code 4123:1-5-13. The magistrate has already rejected the employer's argument that 

the operation of the vehicle was not part of the manufacturing process. The management 

and movement of inventory and its dispatch from the manufacturing plant property can 

be reasonably deemed part of the manufacturing process. Furthermore, the two federal 

OSHA codes relied on by the employer, 29 C.F.R. 1910.178(a)(1) and 29 C.F.R. 

1926.601(a), do not aid the employer's argument. 29 C.F.R. 1910.178(a)(1) does not 

address the type of vehicle here or how it was being used in the present case at the time 

of the injury, and the definition of motor vehicles found in 29 C.F.R. 1926.601(a)—i.e., a 

vehicle operating on an off-highway jobsite, not open to public traffic—is actually 

consistent with the description of the vehicle in the present case. Finally, the employer's 

attempt to find absurdity by analogizing the over-the-highway vehicle here with 

automobiles being driven by employees operating in a company parking lot is 

unconvincing. Automobiles being driven by employees and visitors in a company parking 

lot bear no relation to the manufacturing process, are not being operated within a 

structural enclosure setting forth the boundaries of work activity, and are not in an area 

that keeps unauthorized nonemployees out.

{¶ 40} The employer next argues that the commission erred and abused its 

discretion when it found that the accumulation of snow constituted a visual impairment 

of the cab glass for purposes of Ohio Adm.Code 4123:1-5-13(C)(4). The employer asserts 

that a plain reading of that section reveals it applies to the condition of the glass itself, as 

evidenced by the phrase "its condition." Thus, the employer contends, there would be a 
No. 21AP-93 15

violation if the glass was cracked or broken, but the temporary accumulation of snow has 

nothing to do with the condition of the glass itself. However, the employer's narrow 

definition of "its condition" is not consistent with a "plain" meaning of the phrase. For 

example, whether the condition of the glass is due to oxidation etched onto its surface or 

snow resting atop its surface, it can still be reasonably said that vision through the glass 

in both cases has been impaired "by its condition." The commission read Ohio Adm.Code 

4123:1-5-13(C)(4) in this manner, and "[t]he interpretation of a specific safety 

requirement lies exclusively with the commission." State ex rel. Internatl. Truck & 

Engine Corp. v. Indus. Comm., 122 Ohio St.3d 428, 2009-Ohio-3502, ¶ 10. Thus, a court 

must "defer to the commission's expertise in its construction of the safety code unless that 

construction is shown to be an abuse of discretion" just as we always "defer to an agency's 

interpretation of its own rule, as long as it is reasonable." State ex rel. Richmond v. Indus. 

Comm., 139 Ohio St.3d 157, 2014-Ohio-1604, ¶ 25, 28. When the commission has 

determined that a specific safety requirement does apply to an employer, the employer 

must show that the commission abused its discretion before a court will issue a writ of 

mandamus to correct the commission's decision. See State ex rel. Fiber-Lite Corp. v. 

Indus. Comm., 36 Ohio St. 3d 202, 204 (1988). In the present case, the magistrate finds 

no abuse of discretion and defers to the commission's interpretation that accumulated 

snow is a "condition" of cab glass that impairs vision, as that term is used in Ohio 

Adm.Code 4123:1-5-13(C)(4).

{¶ 41} Finally, the employer argues that the commission erred and abused its 

discretion when it improperly held the employer strictly liable for its employee's failure 

to clear off the snow from his windshield, even though the employee violated a work rule 

requiring him to clear the windshield and was discharged as a result of his violation. The 

employer contends that a worker's "unilateral negligence" precludes a finding that the 

employer violated a specific safety requirement, because there must be some act or 

omission under the control of the employer to justify a VSSR penalty, and the employer 

cannot be found strictly liable for the unforeseen negligent acts of its employees, citing 

State ex rel. N. Petrochemical Co., Nortech Div. v. Indus. Comm., 61 Ohio St.3d 453 

(1991), and State ex rel. Frank Brown & Sons, Inc. v. Indus. Comm., 37 Ohio St.3d 162 

(1988). The employer points out that it maintained a work rule requiring employees to 
No. 21AP-93 16

clear their windshields of snow and other visual obstructions, it enforced the rule, and it 

fired the employee responsible for hitting claimant with his vehicle in this case. 

{¶ 42} The employer's argument is without merit. The defense of unilateral 

negligence by an employee is available to an employer in a VSSR case only if the employer 

has complied with the specific safety requirement, and the employee has unilaterally 

violated it. State ex rel. Byington Builders, Ltd. v. Indus. Comm., 156 Ohio St.3d 35, 

2018-Ohio-5086, ¶ 39-40. "Because the critical issue in a VSSR claim is always whether 

the employer complied with the [specific safety requirement], an employee's conduct, 

even if negligent, is not relevant to a VSSR determination unless the injury is caused by 

the claimant's deliberate circumvention or disabling of a safety device or refusal to use 

employer-provided safety equipment." (Citations omitted.) State ex rel. Sunesis Constr. 

Co. v. Indus. Comm., 152 Ohio St.3d 297, 2018-Ohio-3, ¶ 29. The unilateral negligence 

defense is viable when an employee "removes or ignores equipment or instruction that 

complies with a specific safety requirement." State ex rel. Quality Tower Serv., Inc. v. 

Indus. Comm., 88 Ohio St.3d 190, 193 (2000). It must be kept in mind that specific safety 

requirements are intended to protect employees from their own negligence, folly, and 

stupidity, in addition to providing them with a safe working environment. State ex rel. 

Blystone v. Indus. Comm., 14 Ohio App.3d 238 (10th Dist.1984).

{¶ 43} In the present case, the employer did not initially satisfy the specific safety 

requirement. The employer did not, in the first instance, satisfy its obligation of providing 

cab glass with the vision unimpaired by its condition. The glass was covered in snow 

preceding claimant's injury, and the employer did not provide claimant's coworker with 

cab glass with unimpaired vision. Importantly, in the cases relied upon by the employer, 

"the claimant's conduct was the sole cause of his injuries; however, in this case, the 

claimant did not contribute to his injuries." State ex rel. Weich Roofing, Inc. v. Indus. 

Comm., 69 Ohio App.3d 281, 285 (10th Dist.1990) (finding that a coworker's switching of 

the original ladder with safety feet for a replacement ladder without safety feet did not fall 

under the unilateral negligence rule, and the employer's ultimate responsibility to comply 

with specific safety regulations and provide a safe working environment does not shift to 

an employee unless the employer complies with the applicable safety regulations in the 

first instance and the claimant's unilateral negligence causes the injury). In Northern 
No. 21AP-93 17

Petrochemical, neither the claimant nor his coworker checked whether a cage was 

securely attached to a forklift. In Frank Brown & Sons, scaffolding collapsed as the result 

of the claimant's removal of a top cross brace without first installing a corresponding 

brace beneath. The employer cites no cases in which the unilateral negligence rule has 

been applied to the negligent actions of a coworker and the claimant did not in any way 

contribute to his own injuries. For these reasons, the magistrate finds that the unilateral 

negligence rule does not apply to preclude the employer's liability for a VSSR. 

{¶ 44} Accordingly, it is the magistrate's decision that this court should deny the 

employer's petition for writ of mandamus. 

/S/ MAGISTRATE 

 THOMAS W. SCHOLL III

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 53(D)(3)(a)(ii), 

unless the party timely and specifically objects to that factual 

finding or legal conclusion as required by Civ.R. 53(D)(3)(b).